Travel Management Project Comment and Direct and Constructive Notice

[maksutaSTAR]

Everyone needs to read this Federal Register Notice for occupancy and the use of motorixed eauipment and roads.

Jerry

http://a257.g.akamaitech.net/7/257/2...df/E7-8706.pdf

[editor]

This is PLP Notice and comments, to Tahoe and Plumas National Forest for attempting to close over 2,000 miles of roads. There may be as many as 17 other Forests doing the same thin. If your Forest is one of them you can use this document to serve them.

Jerry and Clark

May 10, 2007


Clark Pearson
Northern Office of Public Lands for the People Inc.
15329 Little Valley Rd. #33, Grass Valley, CA 95949)
(530) 273-0420

Certified mail #

United States Dept. of Agriculture
Travel Management Team
Tahoe National Forest
631 Coyote St.
Nevada City, CA. 95959

Attn: David Arrasmith, Project Contact

Re: Tahoe National Forest OHV Route Designation/Travel Management Project
Comment and Direct and Constructive Notice

Dear Agents:

This letter is to comment on the proposed, above captioned project, (Project). It constitutes, both, Public Lands for the People, Inc. comments and, my personal comments as an individual. Public Lands for the People, Inc., (PLP), is a California non-profit corporation dedicated to the protection of the environment as well as the preservation of lands, being held in trust for the public and for use by the public. PLP represents a base of around 40,000 constituent members. PLP and I, both, have legally protectable interests, within the Project area, which would be adversely affected by the failure of the USDA-Forest Service to heed these comments. Response to this letter should be sent to the above address.

The Project purports to inventory, classify use, and to add and obliterate roads and trails upon the Tahoe National Forest, which the Forest Service deems sustainable or useless.

PLP and I have reason to believe that the Project is unlawful and, therefore, a misappropriation of federal funds for the following reasons:

RS-2477

PLP and I, as members of the public and as citizens of the United States, here fore, declare and have for years accepted the use and routine maintenance of all roads and trails within the Tahoe National Forest whether those trails are actively maintained by the U.S. Forest Service, State, County or not. That being said, this use was and has been our public acceptance of our ongoing and continual use of said Act of Congress (R.S.2477). No formal action by the Forest Service is required. Nor is our informal declaration required to be recorded by public (governmental) authorities. Title to an R.S.2477 right-of-way passes without any procedural formalities and without agency involvement.

If you are not aware, Congress repealed R.S.2477 in 1976. But even as Congress repealed R.S.2477, it specified that any valid rights-of-way “existing on the date of approval of this Act”(October 21, 1976) would continue in effect. The Statute thus had the effect of freezing R.S.2477 rights as they were in 1976. In other words, the scope of an R.S.2477 right-of-way is limited by the established and historical usage of the route as of the date of repeal of the Statute.

To illustrate, I have included an excerpt from the report on Jarbidge:

"The 1866 Act created a general right-of-way for settlers to cross these lands at will. It also allowed for the establishment of easements.
At this point, it is important to note the definitions of these key terms:
A right-of-way is defined as the right to cross the lands of another.
An easement is defined as the rights to use the lands of another.
Section 8 and 9 of the 1866 Act are the seminal U.S. law defining the rights of ownership in the Jarbidge South Canyon Road. Section 8, which was later codified as Revised Statute 2477, deals with the establishment of ‘highways’ across the land. The term highways as used in the 1866 Act refers to any road or trail used for travel. The right-of-way portion of this act was an absolute grant for the establishment of general crossing routes over these lands at any point and by whatever means was recognized under local rules and customs.”

I might add that according to the Supreme Court of the United States, and I quote:
"A contract is a compact between two or more parties, and is either executory or executed. An executory contract is one in which a party binds himself to do, or not to do, a particular thing;...." "A contract executed is one in which the object [10 U.S. 87, 137] of contract is performed; and this, says Blackstone, differs in nothing from a grant...." "A contract executed, as well as one which is executory, contains obligations binding on the parties. A grant, in its own nature, amounts to an extinguishment of the right of the grantor, and implies a contract not to reassert that right. A party is, therefore, always estopped by his own grant." Fletcher v. Peck, 10 U.S. 87 (1810)
This begs the question as to whether or not R.S.2477 could have ever been repealed in the first place in 1976 by Federal Lands Management & Policy Act.
The Forest Service may not use its authority to hinder, obstruct, or otherwise materially interfere with the routine maintenance of these roads and trails performed by the public who are the vested property holders of the R.S.2477 rights-of-way. Any acts on the part of the Forest Service to obstruct these routes will be viewed as a public nuisance and are actionable under CA. Civ. Code 3479 and CA. code of civ. procedure 731. Historically, conflicts between private users and the definitions used, have been fleshed out and resolved in State courts under State law.

Enclosed are 8 map (USGS Topo) exhibits and their listing below reflecting some of our accepted pre-1976 public right-of-ways. The 15 minute maps are 15”x19” in size; the 7.5 minute maps are 18”x24” in size. PLP and I reserve the right to supplement the record as the other maps are obtained. An extension in time for further comment is hereby requested because the remaining documents, which we are exhibiting, are not readily available at this time.

Exhibit Table
Strawberry Valley, CA. Quad. 7.5 min.
Goodyears Bar, CA. Quad. 7.5 min.
Pike, CA. Quad. 7.5 min.
LaPorte, CA. Quad. 7.5 min.
Downieville, CA. Quad. 7.5 min.
Camptonville, CA. Quad. 7.5 min.
Mooreville Ridge, CA. Quad. 15 min.
Downieville, CA. Quad. 15 min.


Violation of Pub. L No 104-208,110 Stat.3009 (Omnibus Consolidated Appropriations Act)

Pub. L No 104-208,110 Stat.3009 clearly states: “No final rule or regulation of any agency of the Federal Government pertaining to the recognition, management, or validity of a right-of-way pursuant to Revised Statute 2477 shall take effect unless expressly authorized by an Act of Congress subsequent to the date of enactment of this Act [Sept.30, 1996]”. Emphasis added.

Congress has forbidden federal agencies from using funds for developing, promulgating, and thereafter implementing a rule concerning rights-of-way.

I, as an individual, as well as members of the public at large and PLP members, have been and continue to exercise their R.S.2477 grant; thusly, no final rule or regulation of any agency of the Federal Government pertaining to the recognition, management, or validity of a right-of-way pursuant to Revised Statute 2477 shall take effect unless expressly authorized by an Act of Congress subsequent to the date of enactment of this Act.
PLP and I assume and believe miners and the general public will be cited for exercising their R.S.2477 rights-of-way.

Violation of 30 U.S.C.A. 22 (Mining Act)

30 U.S.C.A. clearly states: “Except as otherwise provided, all valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States and those who have declared their intention to become such, under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States”. Emphasis added.

The National Forest cannot be free and open to exploration if the historical means of access by prospectors can be prohibited by Forest Service obstructions, and Forest Order prohibitions. The Forest Service has the power to reasonably regulate activities incident to mining but only so far as to not prohibit reasonable historical means of access. This project and proposed temporary and permanent Forest Orders are prohibitive and not merely regulatory in fundamental character. This project and proposed temporary Forest Orders are also frustrating the implementation of the Minerals Policy Act (30 U.S.C.A 21(a)).

Violation of 30 U.S.C.A. 612(b) (Multiple Surface Use Act)

30 U.S.C.A. 612(b) clearly states:
“Rights under any mining claim hereafter located under the mining laws of the United States shall be subject, prior to issuance of patent therefor, to the right of the United States to manage and dispose of the vegetative surface resources thereof and to manage other surface resources thereof (except mineral deposits subject to location under the mining laws of the United States). Any such mining claim shall also be subject, prior to issuance of patent therefore, to the right of the United States, its permittees, and licensees, to use so much of the surface thereof as may be necessary for such purposes or for access to adjacent land: Provided, however, That any use of the surface of any such mining claim by the United States, its permittees or licensees, shall be such as not to endanger or materially interfere with prospecting, mining or processing operations or uses reasonably incident thereto: Provided further, That if at any time the locator requires more timber for his mining operations than is available to him from the claim after disposition of timber therefrom by the United States, subsequent to the location of the claim, he shall be entitled, free of charge, to be supplied with timber for such requirements from the nearest timber administered by the disposing agency which is ready for harvesting under the rules and regulations of that agency and which is substantially equivalent in kind and quantity to the timber estimated by the disposing agency to have been disposed of from the claim: Provided further, That nothing in this subchapter and sections 601 and 603 of this title shall be construed as affecting or intended to affect or in any way interfere with or modify the laws of the States which lie wholly or in part westward of the ninety-eighth meridian relating to the ownership, control, appropriation, use, and distribution of ground or surface waters within any unpatented mining claim”. Emphasis added.

The project proposes to close access intentionally or by misapplication to unpatented mining claims. This project and its associate temporary and permanent forest orders will materially interfere with claimants’, and prospectors’ existing rights and means to access as provided by 16 U.S.C.A. 478 which states in part: “…Nor shall anything in such sections prohibit any person from entering upon such national forests for all proper and lawful purposes, including that of prospecting, locating, and developing the mineral resources thereof”. Emphasis added.

Again, the project and its associate temporary and permanent forest orders have a prohibitive, not merely a regulatory, role.

Violation of 16 U.S.C.A.472 (Transfer Act)

16 U.S.C.A 472 clearly states: “The Secretary of the Department of Agriculture shall execute or cause to be executed all laws affecting public lands reserved under the provisions of section 471 of this title, or sections supplemental to and amendatory thereof, after such lands have been so reserved, excepting such laws as affect the surveying, prospecting, locating, appropriating, entering, relinquishing, reconveying, certifying, or patenting of any of such lands”. Emphasis added.

As pointed out in the earlier violations, the Project will affect the Miners’ rights under the 1872 Mining Law, frustrate the long standing will of Congress and upset 141 years of Miners’ and the Public rights-of-way across Federal Land.

Violation of 42 U.S.C.A 12132 (Americans with Disabilities Act)

42 U.S.C.A. 12132 clearly states: “Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity”. Emphasis added.

Many of PLP’s membership are made up of individuals with disabilities. These individuals have and wish to continue using these public rights-of-ways without discrimination. The Project discriminates against these individuals by exclusion and [class]ification barring the customary usage of the Public rights-of-way.

Violation of 18 U.S.C.A 666 (Misappropriation of Federal Funds)

PLP and I have become aware that Congress has not specifically appropriated funds for said major federal action (Project). And as such, no further studies, inventories, regulatory promulgations or meetings can take place regarding this Project until said monies are in fact specifically appropriated from Congress. At present, the Forest Service is misappropriating funds out of its annual budget and thusly drying up available funds that were to be used for maintenance of National Forest roads and trails, fire suppression (among other general duties). PLP and I are informed and allege that “green sticker monies” are being misappropriated as well for closure purposes rather than general maintenance of OHV facilities and infrastructure.


Conclusion

For the reasons cited above, PLP and I request that the Forest Service pick the “No Action” alternative for this Project to ensure the Forest Service does not violate the Laws of the United States, nor the rights of its citizens.

Respectfully submitted,


Clark Pearson
Northern Director, Public Lands for the People Inc.